Elliott v Novek Pty Ltd - [1999] WADC 55

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ELLIOTT -v- NOVEK PTY LTD [1999] WADC 55

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 24 MAY 1999

DELIVERED : 14 JULY 1999

FILE NO/S: CIV 2799 of 1998

BETWEEN: ROGER PETER ELLIOTT
Plaintiff
AND
NOVEK PTY LTD
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia and the Rules of the District Court of Western Australia - Application for leave to administer interrogatories - Questions seek evidence

Legislation:

Nil

Result:

Defendant's application dismissed

Representation:

Counsel:

Plaintiff: Mrs A Dowley
Defendant: Mr K Staffa

Solicitors:

Plaintiff: Butcher Paull Calder
Defendant: Preuss Feinauer & Associates

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The plaintiff seeks damages for personal injuries which he alleges were sustained when the front wheel of his bicycle dropped through a grating covering a hole at premises of which the defendant was occupier. The defendant denies occupation of the premises and the balance of the plaintiff's allegations of material fact; alternatively it alleges the plaintiff's negligence.
The defendant seeks leave to interrogate the plaintiff. Leave is required as the interrogatories were not served within time. Whether leave ought to be granted depends upon an assessment of the task which it seeks to set for the plaintiff. The application ought not succeed if that task is oppressive. Consideration is properly given to the task which would be generated by the set of questions, not by the individual questions. If leave was granted the plaintiff would have the opportunity to object to any or indeed each question, conceivably even on the ground of oppression. If the application was successful then if either the Rules or practice would allow, the plaintiff would lose the opportunity to contest the set en bloc.
There is a frequently expressed view of the process of interrogation that almost any question may be put. In my opinion that view allows for a subtle shift of focus onto the interrogated party. At all times the onus and focus are properly upon the interrogating party. In any application relating to the process of interrogation the issue is not what questions may be put but rather which questions ought to be answered.
In the broader context of litigation it is fair to consider that the datum within a range of conduct which establishes an inappropriate degree of oppression is relatively low. And so it is that within the context of interrogation there is ample authority to support the statement that the interrogated party should be presented with no more than what would be the simplest of a possible range of tasks. A precisely framed question which puts a proposition as to the existence or non-existence of a fact would be unremarkable other than that it provides the appropriate datum against which other forms of question may be judged. By that standard a question which asks for a party's date of birth can be distinguished from one which puts the proposition that a particular date is his date of birth. The latter calls for an admission, the former, for evidence. In my opinion as a matter of principle the former is impermissible. Yet as the latter seeks what could only be a discrete fact a Court which allows the onus to shift may none the less either permit the latter to be put or require it to be answered.
It is my opinion that the most fitting description of the defendant's set of questions is that they seek evidence. I form that opinion on the basis that so many of the individual questions either directly or ultimately seek evidence that the set assumes that character. It is also my opinion that broadly speaking, those questions which call for evidence do not seek what would only be discrete facts.
Questions that call for more than an admission and which are not limited to discrete facts are on a number of counts inherently oppressive. That is so simply because the questioner burdens his opponent with the task of determining how to answer and whether to object. Objection is fraught with consideration of cost, delay and the lack of a consistent approach by the Court. If he elects to answer he would need to consider the form, content and sufficiency of what might be a number of different possible answers. As to the content, he may reflect upon his own interest. His solicitor would be called upon to reflect upon his duty to his client. Of equal moment is the real prospect that a party's solicitor will compose the answer although the party will swear it. Having to negotiate a form of words acceptable to both the solicitor and the party constitutes oppression. None of those issues arise where the questioner puts a simple proposition and calls for a response.
It is significant that there is no rule to the effect that a party is entitled to his opponent's evidence prior to trial. By that measure the exercise of discretion in favour of the applicant would confer upon it a significant advantage. There is scope for the perception that the plaintiff would be disadvantaged. The defendant ought not be so advantaged by inappropriate resort to the process of interrogation. It is appropriate to reflect that in the absence of a rule to that effect there is no jurisdiction to require the involuntary provision of evidence. It is also appropriate to reflect upon the cost of the exercise.
In my experience the usual response to a question which calls for other than a discrete fact is what could be described as a summary of the evidence. One may reflect that such an answer is hardly in accordance with the authorities. However as a matter of practice there is some sense to be made of providing a short paragraph or two rather than a page or pages of evidence. It may be unfortunate that such a practice has become so commonplace that it may be considered to reflect at least a standard. In my opinion the only principle addressed by such a standard is that which would found a proper objection on the basis of oppression.
Of more significance than the prospect of oppression is the fact that in the context of trial the wording of such a summary may be contrasted with oral evidence. It may be that the prospect of such contrast may arise simply as the result of differing manner of expression. Even a layman would immediately recognise the prospect that thereby credit is put at risk. That may have such a devastating consequence that it is appropriate to reflect upon whether the Court should countenance such resort being had to the process. The purpose of interrogatories is to save costs but not at the expense of a fair trial. It is conceivable that inappropriate resort to the process may actually manufacture manifest unfairness at trial.
I accept that if a party were unaware of the existence of a fact then it would be at a disadvantage in that it may not be able to frame a proposition. In my opinion the recognition of that prospect simply demonstrates the proper limit of the process. The more significant consideration is whether such disadvantage establishes a proper basis for the Court to countenance the prospect of oppression of his opponent and unfairness at trial.
The starting point is to recognise that by his lack of knowledge such a party is more generally disadvantaged. Such disadvantage may have adverse consequences for it throughout the course of litigation. Even if it was the case that a party had no clue as to the evidence in the possession of his opponent there is no jurisdictional basis for the Court to intervene so as to enlist his opponent's assistance in getting up the case for trial. Ultimately the system upon which the process of litigation is founded implicitly recognises the prospect that parties may be in a position of relative disadvantage. A system which is based upon pleadings may allow for both the prospect that an action is never commenced and that issues are recognised too late in an action. Whilst that may reflect upon the process of litigation, be unfortunate and lead to a waste of resources, it is arguably the natural probable of a system of justice founded upon pleadings. It is appropriate to consider that the courts have maintained the system despite what may be considered to be its shortcomings. Arguably whilst not a system of perfect justice, none the less, it does reflect the robust self interest which human nature dictates that parties bring to disputation.
It is also appropriate to consider the context within which the process of interrogation is found. Broadly speaking the fact that parties find themselves engaged in the process of litigation accords to them few rights.
It is further appropriate to consider that the purpose of the process of interrogation is not to redress such perceived relative disadvantage but rather to secure admissions in relation to relevant facts.
In support of the application the defendant's solicitor gives the following evidence:
"Without answering interrogatories, the defendant's solicitors will not be in a position to properly and fully advise the defendant (and its insurer) on the issues of liability and quantum and this will preclude the prospect of a meaningful pre-trial conference and will inevitably increase the length of trial in my opinion"
That evidence is so general in its terms that it does little more than convey the prospect of present relative disadvantage.
It is appropriate to consider that the defendant has sufficient particulars of the plaintiff's allegations of material fact. It is inappropriate to seek particulars by interrogation. Firstly the function of particulars and interrogatories are different. Secondly to obtain either particulars or evidence by way of interrogation exceeds the proper limits of interrogation. Thirdly it is difficult indeed to amend answers to interrogatories.
It is also appropriate to consider and that the defendant having pleaded the plaintiff's contributory negligence it has the evidence to support such a case.
I accept that in recent times the Court has encouraged parties to adopt a more efficient approach to litigation. The Court also encourages parties not only to reflect upon the prospects of compromise but also to engage in a free flow of information. The benefits of that approach to both the parties and the Court are clear. It is not difficult to discern that the public interest is also served. In my opinion there is a distinction to be drawn between promotion of the prospects of compromise and the involuntary of provision of evidence by one party to the other.
It is no answer to the application that in actions for personal injuries in the District Court there is a rule which sanctions interrogatories which fall within the scope of number of categories. The rule only provides a series of arbitrary limits of relevance. There is nothing to indicate that a party could simply extensively interrogate in the terms of the rule in order to receive his opponent's evidence. Despite the fact that the rule does prima facie establish relevance for the purpose of personal injury cases, there is no basis in principle to distinguish appropriate interrogatories in those actions from any other action. There is no basis upon which to discern that the nature of a cause of action determines that different considerations apply in different causes of action. The principles remain the same.
In my opinion the fact that the defendant may consider itself at a disadvantage in the litigation is no reason to allow for the defendant to ask the plaintiff questions which are inherently oppressive. Whilst it may be the case if the defendant was better informed as to the plaintiff's evidence it would enhance the prospects of compromise, the proper focus is upon preventing oppression and preserving the prospect of a fair trial. As to those considerations there is no scope for compromise.
In my opinion the defendant's application must fail.